Title IX Under Fire

Due process lawsuit

The federal government's ongoing effort to compel universities to punish students for sexual misconduct has met its first significant legal challenge: a lawsuit brought by a former University of Virginia (UVA) law student.

The student, "John Doe," was accused of sexually assaulting a female student, "Jane Roe," on August 23, 2013. But Roe did not make her complaint until March 6, 2015—a year and a half later. She eventually claimed that she had been too drunk to consent to sex with Doe.

When evaluating sex disputes between students, UVA uses a preponderance-of-the-evidence standard, which requires only 51 percent certainty the accused party is responsible. The school employs this standard not by choice, but because the Education Department requires it under a law called Title IX.

Doe was found responsible for sexual misconduct, but the case's overseer, a former Pennsylvania Supreme Court justice, said she wouldn't have ruled against Doe if she had been permitted to weigh the evidence using a higher standard of proof.

The Education Department's decision to compel schools to use the preponderance-of-evidence standard is therefore directly responsible for Doe's punishment. His suit argues that, by forcing colleges and universities to adopt this policy, the government is violating students' constitutional rights. He also notes that the Office for Civil Rights—a sub-agency that ensures compliance with the rule—never subjected the preponderance-of-evidence standard to a public comment period. The Administrative Procedure Act prevents agencies from inventing entirely new rules without first obtaining public feedback.

"This lawsuit is targeting the cause, and not just the symptoms, of the complete lack of due process on campus," says Justin Dillon, Doe's legal counsel.

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